TMI Blog2024 (4) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts while exercising jurisdiction under Article 226 of the Constitution of India cannot go beyond the framework of a statute. This Court does not find any reason to interfere with the Order dated 21.11.2023 passed by the Appellate Tribunal refusing to entertain the appeal filed by the Petitioner herein beyond the prescribed period of limitation. The writ petition is dismissed. - HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD For the Petitioner Through: Mr. Kuldeep Baisla, Mr. Tarun Singh Awana and Mr. Sammeer Vatts, Advocates. For the Respondent Through: Mr. Amit Tiwari, CGSC with Mr. Adil Hussain Taqvi, GP. JUDGMENT (ORAL) CM APPL. 21381/2024 (Exemption) Allowed, subject to all just exceptions. W.P.(C) 5225/2024 1. The Petitioner has approached this Court challenging the Order dated 21.11.2023 passed by the Appellate Tribunal constituted under SAFEMA refusing to condone the delay in challenging the Order dated 31.05.2023 passed by the Competent Authority and Administrator, SAFEM(FOP)A, 1976 and NDPS Act, 1985, New Delhi. 2. The facts, in brief, leading to the filing of the instant writ petition are that the Competent Authority constituted under SAFEMA vide Order dated 31.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his duties owing to absence, illness or any other cause, the Central Government may, by order, nominate any member to act as the Chairman until a new Chairman is appointed and assumes charge or, as the case may be, resumes his duties.] (5) The Appellate Tribunal may regulate its own procedure. (6) On application to the Appellate Tribunal and on payment of the prescribed fee, the Tribunal may allow a party to any appeal or any person authorised in his behalf by such party to inspect at any time during office hours, any relevant records and registers of the Tribunal and obtain a certified copy of any part thereof.] 4. The facts of the case reveal that the Order was passed by the Competent Authority on 31.05.2023. The period of 45 days, therefore, came to an end on 20.07.2023. Even if assuming that the Appellate Tribunal could condone the delay taking into account the facts of the case, the appeal should have been filed on or before 04.08.2023 which is the outer limit of 60 days. However, the appeal was ultimately filed by the Petitioner on 20.09.2023. 5. It is well settled that when a statute provides for a separate period of limitation then Sections 4 to 24 of the Limitation Act ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction. 27. It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 28. In Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2 SCC 133] this Court interpreted Section 29(2) of the Limitation Act in the backdrop of the plea that the provisions of that Act are not applicable to the proceedings under the Representation of the People Act, 1951. It was argued that the words expressly excluded appearing in Section 29(2) would mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result. *** 16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, subsection (3) would not be an application in accordance with that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that: 36. Enforcement. Where the time for making an application to set aside the arbitral award under Section 34 has expired the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the court. This is a significant departure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period. (emphasis supplied) The same view was reiterated in CCE and Customs v.Punjab Fibres Ltd. [(2008) 3 SCC 73] 31. In CCE and Customs v. Hongo India (P) Ltd. [(2009) 5 SCC 791] a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that the High Court has no power to condone delay beyond the period specified in Section 35-H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed: (SCC pp. 801-02, paras 30, 32 35) 30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. (emphasis supplied) 32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. (emphasis supplied) 7. Similarly in Patel Bros. v. State of Assam, (2017) 2 SCC 350 , wherein the Apex Court was considering the provision of Section 80 of the VAT Act, 2005 which states that Save as is provided in Chapter IX, no order passed or proceedings taken under this Act, the rules or notification by any authority appointed or constituted under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically made applicable by Section 29(2), it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. The Court held that there is nothing in Section 417(4) CrPC, which excludes the application of Section 5 of the Limitation Act, 1963. 11. The learned counsel for the appellant also referred to State of M.P. v. Anshuman Shukla [State of M.P. v. Anshuman Shukla, (2014) 10 SCC 814]. In that case, question of applicability of Section 5 of the Limitation Act arose in relation to the revision petition that can be preferred under Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (as it stood prior to its amendment in 2005). The Court held that since unamended Section 19 did not contain any express rider on power of the High Court to entertain applications for revision after expiry of prescribed limitation thereunder, the provisions of the Limitation Act, 1963 would become applicable vide Section 29(2) thereof. It further held that as the High Court was conferred with suo motu power under Section 19 of the 1983 Adhiniyam to call for record of an award at any time, there was no legislative intent to exclude the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said period and to condone the delay. Pertinently, under the scheme of the Central Excise Act as well, in case of appeal to the Commissioner under Section 35 of the Act, which should be filed within 60 days, there was a specific provision for condonation of delay up to 30 days if sufficient cause is shown. Likewise, appeal to the Appellate Tribunal could be filed within 90 days under Section 35-B thereof and sub-section (5) of Section 35-B gave power to the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Further, Section 35-EE provided 90 days' time for filing revision by the Central Government and proviso thereto empowers the revisional authority to condone the delay for a further period of 90 days. However, when it came to making reference to the High Court under Section 35-G of the Act, the provision only prescribed the limitation period of 180 days with no further clause empowering the High Court to condone the delay beyond the said period of 180 days. It was, thus, in almost similar circumstances, the judgment was rendered by this Court. 15. The categorical opinion of the Court in Hongo India (P) Ltd. case [Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 16. In the process, the Court also explained the expression expressly excluded appearing in Section 29(2) of the Limitation Act, 1963 in the following manner: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency, if it intends to give power to the High Court to condone the delay in filing revision petition under Section 81 of the VAT Act. 19. The argument predicated on no express exclusion loses its force having regard to the principle of law enshrined in Hukumdev Narain Yadav [Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133]. Therein , the Court made following observations while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act or not: (SCC p. 146, para 17) 17. but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he different provisions contained therein, but also to ensure finality of the decision made thereunder. The fact that the period of limitation described therein has been equally made applicable to the assessee as well as the Revenue lends ample credence to such a conclusion. We, therefore, unhesitatingly hold that the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in Section 84. 22. The High Court has rightly pointed out the well-settled principle of law that: ( Patel Bros. case [Patel Bros. v. State of Assam, 2016 SCC OnLine Gau 124], SCC OnLine Gau para 19) 19. the courts cannot interpret a statute the way they have developed the common law which in a constitutional sense means judicially developed equity . In abrogating or modifying a rule of the common law the courts exercise the same power of creation that built up the common law through its existence by the Judges of the past . The court can exercise no such power in respect of statutes. Therefore, in the task of interpreting and applying a statute, Judges have to be conscious that in the end t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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